ACTUARIAL CASE LAW REVIEW

Facts: Ms Radinene (plaintiff) was born in 1997 and in 2016 took a train journey and was pushed by other passengers in the process of alighting and she fell off the train when the doors opened. She sustained head injuries and was hospitalised. On the fateful day she had returned from a college to register for a course. She did not recall events that occurred when she was hospitalised. All were related to her by her sister after being discharged from the hospital. After being discharged she resolved not to study further because she considered herself a forgetful person. Her family members told her she has memory problems. Later she obtained employment at Nandos. She worked there for six months as she was standing in for a woman who had gone on maternity leave. At a later stage she obtained employment as a waitress at Debonairs. She worked there for four months. She resigned because of complaints that she was mixing orders. Later she obtained employment as an assistant teacher for 12 months. She encountered no difficulties until she concluded the period. As at the time of testifying she was unemployed.

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Claim: The issue of liability was settled at 50% apportionment. The only issue that came for determination relates to quantum of damages claimed by the plaintiff. She contends that she suffered damages in respect of: general damages; future hospital and medical expenses; and past and future loss of earnings.

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Medical expenses and general damages: With regard to future hospital/medical expenses, no evidence was led to substantiate the claimed R633,046. The report by the experts do not serve as evidence before court. Accordingly, such a claim must fail. The hospital records reflected that she was epileptic and was on epileptic medication. Ultimately the situation was corrected and the experts were congruent to each other that she was not epileptic, although there may be a risk for epilepsy to set in. The head injuries sustained by the plaintiff are not severe and did not require surgery. According to the hospital records, upon admission her GCS was 15/15, which meant that she was fully conscious. Upon admission, because of the bleeding from the ears, intracranial fracture was suspected. The CT scan disproved such. R1 million was claimed for general damages. Taking into account the pain and suffering and the limited loss of amenities of life, R400,000 in respect of general damages would be fair. Such will be subject to the 50% apportionment.

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Loss of income: No evidence was led that her patrimony was reduced after the accident. On the contrary, she secured employments post-accident. She on her own volition resigned from Debonairs. With regard to the errors she was committing at Debonairs, she was not the only one and it happened during busy times, but she considered herself to be more prone to those errors than the rest. There is no collateral evidence to support her claims that she was a non-useful worker. When she worked as an assistant teacher, she had no difficulties and she was, on her own version, able to follow instructions. Clearly her earning capacity, on the strength of this evidence, was not compromised in any manner whatsoever. The intermittent headaches she told Dr Segwapa about have no connection to her alleged loss of earning capacity. She had managed to work for Nandos, Debonairs, the school, and underwent learnership with such conditions present. Dr Segwapa confirmed that given the age of a person, recovery from mild traumatic brain injury is possible. He had no way of establishing that the alleged headaches were occurring other than the ipse dixit of the plaintiff. With regard to costs, since the plaintiff failed to prove her special damages, any costs including the qualifying or preparatory fees of her experts cannot be carried by PRASA. Although Dr Segwapa testified before court, his evidence proved to be unhelpful to the plaintiff. Therefore, the plaintiff is only entitled to the costs on a party and party scale in relation to proving general damages.

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Order: The Fund is to pay the plaintiff R200,000 being 50% of the proven general damages. The Fund is to pay the costs of the plaintiff on a party and party scale to be taxed or settled at scale A. Such costs do not include the costs of the experts.

MOSHOANA J

Facts: The plaintiff was a passenger in a motor vehicle that was involved in a collision with the insured vehicle in 2017. The plaintiff was 22 years old when the accident occurred and is currently 29 years old and unemployed. The medical records from Polokwane Provincial Hospital show that the plaintiff had sustained a laceration on the base of the nose and an abrasion of the forehead. The plaintiff was admitted at 08h55 and discharged the same date at 10h55. The plaintiff says that as a result of unbearable chest pain, he cannot do any type of work to earn a living. The neurologist opined that the plaintiff’s sequelae is mild concussion and 4% WPl. The ENT specialist noted certain nerve fallout and concluded that the plaintiff sustained head injuries with loss of hearing. The plaintiff reported a painful knee to the orthopaedic surgeon, but the tests did not reveal deformity or limited range of motion.

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Claim: A previous order was granted in terms of which the Fund was found liable for 100% of the plaintiffs proven damages. The industrial psychologist opined that the accident rendered the plaintiff an unequal competitor for gainful employment as well as a much more vulnerable employee having to compete with well-bodied individuals for employment. The expert further opined that the plaintiff is currently unemployed, and that it is beyond reasonable doubt that the accident has rendered the plaintiff practical unemployable in the open labour market and this will constitute a total loss of future earnings. See paras [19]-[20] for the two scenarios of the industrial psychologist based on a certificate (NQF level 5) and a National Diploma (NQF Level 6).

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Discussion: The injuries in the medical records are not identical with the injuries reported in various expert reports. The plaintiff reported knee injury to the orthopaedic surgeon, but such was not recorded in the medical records. The plaintiff reported chest pain to the occupational therapist but the same was not on the records. He reported that he became unconscious when the accident occurred but such information was not documented in the medical records. The psychotherapist opined that the plaintiff should be re-examined by a neurologist and the findings of the psychotherapist was not conclusive and such evidence did not help the court. The nexus between the injuries recorded in the medical records and other injuries reported by the plaintiff to various experts was not succinct. The extent of neurological impairment was not precise from the reports. It took approximately two years and nine months before the plaintiff was assessed by the orthopaedic surgeon. Other medical experts assessed the plaintiff three years post-accident. The court is not satisfied that all injuries reported are motor vehicle accident related.

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Findings: The plaintiff had some learning challenges pre-accident and it will not be reasonable to suggest that the plaintiffs' drop out from school was entirely due to the motor vehicle accident injuries. The plaintiff repeated four grades before the accident so this indicates that pre-accident the plaintiff had challenges as opined by the educational psychologist. The accident might have contributed slightly to the dropout from school but the plaintiff had serious learning challenges pre-accident. The accident happened after the 2017 final examinations but the plaintiff had failed Grade 11 and this was not as a result of the accident. When dealing with the issues of future loss of earning and general damages the court took note of all the discrepancies found among the medical experts' reports. The court finds that the plaintiff’s pre-morbid and post-morbid future earnings capacities are equal. The court shall compensate the plaintiff’s future loss of earnings by applying a contingency spread method of 10%. The court uses scenario 1 of the actuary and applies a 15% contingency to the pre-morbid earnings and a 25% contingency to the post-morbid earnings, both being R9,606,430.

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Order: The Fund is to pay R960,643 in respect of loss of earnings and R 500,000 for general damages.

MASHAMBA AJ

Facts: In 2013 a head-on collision occurred between two motor vehicles. The plaintiff was seated in the rear of the motor vehicle behind the front passenger seat when a vehicle travelling in the opposite direction swerved into the path of their vehicle. The plaintiff sustained serious injuries and two individuals driving in the other vehicle were less fortunate and perished. The plaintiff sustained, inter alia, a concussive head injury, a fracture to her left clavicle and an injury to her lumbar spine. She suffered from severe emotional shock and was diagnosed with Severe Major Depressive Disorder and chronic post-traumatic anxiety as a result of the accident. The plaintiff was also treated by a neurosurgeon for her severe headaches and was readmitted to hospital 8 or 9 times for the severe headaches and underwent infiltrations as well as manipulations of the neck.

Claim: The Fund has conceded that it is liable for 100% of the damages proved by the plaintiff at trial. General damages became settled at R800,000 and the Fund made an undertaking for future medical expenses. The only issues that remained in dispute and upon which the trial would proceed, were that of past medical expenses and loss of income.

Discussion: The Plaintiff has undergone seven MRI brain scans in an effort to identify the causes to her headaches and unidentified abnormalities. She receives medication for depression as well as insomnia and has difficulty falling asleep and staying asleep which leads to irritability. She suffers from concentration and short-term memory problems. She is forced to rely on lists. She forgets directions or information discussed with her husband. The neuropsychologists agree that she suffers from concentration difficulties. According to the neurosurgeon, the plaintiff falls within the 10-20% “miserable minority” which is composed of patients who suffer from different sets of symptoms, not one unified post-concussive syndrome. According to the joint minute by the neuro-psychologists the plaintiff was of above average cognitive intellectual ability pre-morbidly. Although the plaintiff indicates that she has a rare skill set, having both technical and business skills, the industrial psychologist is of the view that her combined and contributory difficulties and the extra time required to do her work makes it unlikely that she would be able to attain the occupational levels and earnings that she could have earned had the accident not occurred.

Findings: The psychiatrist agreed with the clinical psychologists that the plaintiff’s PTSD, depressive disorder and cognitive behavioural effects are compounded by pain and undermine her vocational functioning and that she is performing considerably below her pre-accident level of functioning. The primary difference in the expert opinions of the industrial psychologists is that Ms Rossouw (for the plaintiff) opines that, had the accident not occurred, the plaintiff would in all probability, and by applying a linear progression, have reached her income ceiling at around the D5/E1 Paterson levels, while Mr Tsiu (for the defendant) is of the opinion that she would have reached her career ceiling at the Paterson D1 level. Ms Rossouw’s opinion is given in consideration of collateral information she acquired from the plaintiff’s employers and colleagues. The court is persuaded that Ms Rossouw’s proposed career progression must be favoured. The actuary for the plaintiff calculated the capital value of the plaintiff’s loss of income based upon a second addendum furnished my Ms Rossouw as being R6,762,503. The court is satisfied that awarding the plaintiff 60% of the difference between what has been calculated (after the application of the statutory cap) by the plaintiff’s expert based upon Ms Rossouw’s reports and what was calculated by the plaintiff’s expert based upon Mr Tsiu’s report is equitable in the circumstances.

Order: The Fund is to pay R5,560,884 in respect of the claim for loss of income.

BERKOWITZ AJ